THIS SHARE MORTGAGE is made on the 30th day of January, 2002.
BETWEEN:-
(1) The Ashton Technology Group, Inc., a company organized under the laws of
Delaware, United States of America with its business office at 11 Penn
Center, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000, Xxxxxx
Xxxxxx of America (the "CHARGOR"); and
(2) XX Xxxxxx Group Limited, a company incorporated with limited liability in
the British Virgin Islands whose registered address is P.O. Box, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands (the
"LENDER").
WHEREAS:-
(A) This Share Mortgage is made pursuant to the Agreement (as hereinafter
defined) between the Chargor and the Lender which sets out the terms and
conditions upon which, at the request of the Chargor, the Lender has
agreed to make available to the Chargor as borrower a loan of
US$500,000.00 (the "LOAN").
(B) The Chargor is the sole legal and beneficial owner of the Shares (as
hereinafter defined).
(C) It is one of the conditions of the Loan that the Chargor shall execute in
favour of the Lender this Share Mortgage on the terms and conditions
hereinafter contained as security for the Indebtedness (as hereinafter
defined).
NOW THIS SHARE MORTGAGE WITNESSETH AND IT IS HEREBY AGREED AND DECLARED as
follows:-
1. (A) All words and expressions defined in the Agreement shall, unless
specifically defined or redefined herein or the context otherwise
requires, have the same meaning when used in this Share Mortgage.
(B) In this Share Mortgage the following expressions shall, except
where the context otherwise requires, have the following
meanings:-
"AGREEMENT" means the facility letter of even date from the
Lender and addressed to and duly accepted by the
Chargor as borrower and shall include such
facility letter as amended or supplemented from
time to time;
"BUSINESS DAY" means any day on which banks and financial
institutions in Hong Kong are open for business
but excluding Saturdays and "Business Days" shall
be construed accordingly;
"COMPANY" means The Ashton Technology Group, Inc., a company
incorporated in Delaware, U.S.A.;
"INDEBTEDNESS" means (i) all moneys, obligations and liabilities,
whether past, present or future, actual or
contingent, primary or secondary or in any
capacity, now or at any time hereafter or from
time to time due, in any currency, owing or
incurred to the Lender by the Chargor (in each and
any case, whether solely or jointly with any other
person whomsoever, in whatever style or form, and
whether as principal or surety) under the
Agreement, (ii) interest on such moneys (both
before and after any demand or judgment) to the
date on which the Lender receives payment, at the
rates payable by the Chargor under the Agreement
or which would have been payable but for any
circumstance which restricts payment, (iii) any
expense of the Lender in making payment in respect
of the Shares on behalf of the Chargor (but
without the Lender being under any obligation to
do so) as a result of failure by the Chargor to
make such payment when due and (iv) all expenses
of the Lender in enforcing this Share Mortgage on
a full indemnity basis;
"SHARE MORTGAGE" means this Share Mortgage as originally executed
or as it may from time to time be amended or
supplemented;
"SHARES" means the 47,000,000 shares in the issued share
capital of Kingsway ATG Asia Limited solely,
legally and beneficially owned by the Chargor and
such number of share or shares in the Company from
time to time remaining mortgaged or charged to the
Lender hereunder, and also includes any further
shares referred to in clause 5 hereof;
(C) References in this Share Mortgage to any Ordinance shall (except
where the context otherwise requires) be deemed to include any
statutory re-enactment thereof or any statutory modification
thereof having substantially the same legal effect but not having
retrospective effect.
(D) Words importing the singular number only shall include the plural
and vice versa and words importing the masculine, feminine and/or
neuter genders shall include the others of them and words
importing persons shall include firms and corporations.
2. (A) As a continuing security for the due and punctual payment by the
Chargor of the Indebtedness, the Chargor hereby deposits with the
Lender on or before the date hereof all the share certificates
covering the Shares, all of which are hereby warranted by the
Chargor to be within its own disposition and control and free
from any prior charge or encumbrance of any kind whatsoever,
together with related instruments of transfer duly signed by the
Chargor in favour of the Lender or its nominee, and the Chargor,
as beneficial owner, hereby mortgages, charges, pledges, assigns,
transfers, deposits, sets over and confirms the Shares to the
Lender.
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(B) Notwithstanding any other provision herein contained, the Chargor
hereby consents and authorises the Lender, for so long as the
Indebtedness or any part thereof remains outstanding in relation
to the Shares hereby charged, to deposit the Shares or any part
thereof either for custody purpose or as collateral or security
for any loans or advances made to the Lender by any person, firm,
company or corporation whatsoever subject to the Chargor's right
of redemption hereunder but without notice to the Chargor
provided that the Lender shall remain responsible to the Chargor
for the Shares so deposited under this authorization and the
Chargor hereby acknowledges and agrees that the Shares may be
subject to liens of third parties and return of such Shares to
the Chargor may be subject to the prior satisfaction of such
liens.
3. The security constituted hereunder shall be held by the Lender in
accordance with the provisions of this Share Mortgage and the
Agreement.
4. The Chargor hereby represents and warrants to the Lender that it
is now and will during the continuance of this security be the
sole legal and beneficial owner of the Shares, and that the
Shares are fully paid up and are free from any lien, mortgage,
charge or encumbrance save and except for this Share Mortgage and
the first fixed charge hereby created.
5. The Chargor hereby undertakes with the Lender that any bonus
stock or shares or warrants or other new securities of a similar
nature which may at any time during the continuance of this Share
Mortgage be issued in respect of the Shares shall be deposited
with the Lender together with the related instruments of transfer
in blank duly signed by the Chargor or its nominee(s), and shall
thereupon become part of the security hereby effected, and
(unless otherwise expressly agreed in writing by the Lender) all
dividends and interest and all rights, moneys or property
accruing or offered at any time by way of conversion, redemption,
bonus, preference, option, rights or otherwise to or in respect
of the Shares shall be included in the first fixed charge hereby
created.
6. (A) The Chargor hereby undertakes with the Lender that it will at any
time hereafter (whether before or after the security hereby
constituted shall have became enforceable), if and when required
by the Lender, execute, do and pass, or cause or procure to be
executed, done or passed such legal or other mortgages, charges,
pledges, assignments, transfers, assurances, powers of attorney,
letters, resolutions, acts and things in favour or for the
benefit of the Lender as the Lender shall require over or in
respect of the Shares as further security for the Indebtedness or
(as the Lender may require) for perfecting the security hereby
constituted.
(B) Any mortgages, charges, pledges, assignments, transfers,
assurances, powers of attorney, letters or resolutions to be
executed by the Chargor or any the person pursuant to clause 6(A)
shall be prepared by or on behalf of the Lender at the cost and
expense of the Chargor and shall, in the case of any mortgages,
charges or pledges, contain:-
(i) an immediate power of sale without notice upon the
security thereby constituted becoming enforceable,
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(ii) a clause excluding any restrictions imposed by any law
on the power of sale, and
(iii) a clause excluding any restrictions imposed by any law
on the consolidation of mortgages or other securities.
7. (A) The Chargor hereby undertakes with the Lender that it will,
whenever so required by the Lender, forthwith execute and sign
all transfers, powers of attorney and other documents which the
Lender may require for perfecting the Lender's title to the
Shares or vesting the same, or any of them, in a purchaser or in
any trustee for or nominee of the Lender.
(B) In respect of any transfer of the Shares, the Chargor hereby
irrevocably authorises the Lender at any time hereafter (whether
before or after the security hereby constituted has become
enforceable) to date any such transfer if the same be undated,
and if the same shall have been therefore in blank to fill in any
blanks in favour of the Lender, or any trustee for or nominee of
the Lender, or any purchaser.
(C) The Chargor by way of security hereby irrevocably authorizes the
Lender at any time hereafter (whether before or after the
security hereby constituted has become enforceable) to insert the
name of the Lender or its nominee or (after the security
constituted has become enforceable) of any purchaser or to make
any alteration or addition in or to any instruments of transfer
or documents which the Lender may require for perfecting its
title to or for vesting the Shares in the Lender or its nominees
or in any purchaser, and to re-deliver the same thereafter, and
the Chargor hereby irrevocably appoints the Lender to be its
attorney and in its name and on its behalf and as its act and
deed or otherwise to execute, seal, deliver or otherwise perfect
or do any such transfers and other documents as aforesaid and all
such deeds, assurances, agreements, instruments, acts and things
which may be required for the full exercise of all or any of the
powers hereby conferred or which may be deemed proper on, or in
connection with, any sale, disposition or getting in by the
Lender of any of the Shares. For the avoidance of doubt, it is
hereby agreed that any such power of attorney authorising the
sale, disposition or getting in by the Lender of any of the
Shares shall only become effective and exercisable upon the
security created by this Share Mortgage becoming enforceable.
(D) The Chargor by way of security hereby further irrevocably
authorises the Lender at any time hereafter (whether before or
after the security hereby constituted has become enforceable),
insofar as the Shares or any part thereof are not in boardlots,
to split the Shares or any part thereof into boardlots at the
expense of the Chargor as the Lender may in its absolute
discretion require.
(E) The Chargor hereby ratifies and confirms and agrees to ratify and
confirm any instrument, act or thing which the Lender may execute
or do pursuant to clause 7(B) or 7(C) or 7(D) hereof.
8. (A) The Lender may at any time after the security hereby constituted
has become enforceable exercise at its discretion (in the name of
the Chargor or otherwise and
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without any further consent of authority on the part of the
Chargor or otherwise) in respect of any of the voting rights
attaching to the Shares or any of them or as regards any
subscription, conversion or other rights in respect thereof or as
regards any merger, consolidation, reorganisation, receivership
or insolvency proceedings, composition or arrangement in
connection therewith or otherwise, as if the Lender were the sole
beneficial owner of the Shares.
(B) The Lender shall, at all times after the Shares are transferred
into its name or the name of its nominees, trustees or agents and
before the security hereby constituted has become enforceable,
act in accordance with the written instructions of the Chargor in
relation to attendance at meetings and voting in respect of the
Shares or as regards any subscription, conversion or other rights
in respect thereof or as regards any merger, consolidation,
reorganization, receivership or insolvency proceedings,
compromise or arrangement in relation therewith and shall procure
that its nominee, trustees and agents shall do so Provided always
that (i) in the absence of any specific written instructions
received in the above respects from the Chargor, none of the
Lender, its nominees, trustees or agents shall be under any duty
to investigate or participate therein or take any action in
connection therewith; and (ii) none of the Lender, its nominees,
trustees or agents shall be under any duty or responsibility in
respect of any proxy received by them in respect of the Shares or
for sending such proxy or for giving any notice of receipt of the
same to the Chargor.
(C) The Chargor hereby undertakes with the Lender to pay duly and
promptly all calls which may from time to time be made in respect
of any unpaid moneys in respect of the Shares and any other
moneys which the Lender may lawfully be required to pay in
respect of any of the Shares and in the event of default the
Lender may, if it thinks fit, make such payments on behalf of the
Chargor. Any money expended by the Lender under this clause 8
shall be deemed to be properly paid by the Lender.
9. (A) The Chargor hereby undertakes with the Lender to pay to the
Lender, on demand, all costs, charges and expenses incurred
hereunder by the Lender and all other moneys paid by the Lender
in perfecting or otherwise in connection with this security or in
respect of the Shares, including all moneys expended by the
Lender under clause 8 hereof, and all costs, charges and expenses
incurred by the Lender in respect of all proceedings for
enforcement of the security hereby constituted (whether or not
such costs, charges, expenses and moneys, or part thereof, would
be allowable upon a party and party or solicitor and own client
taxation by a court), together with interest thereon at a rate
determined by the Lender in accordance with clause 7 of the
Agreement for the period from the date upon which such costs,
charges, expenses or moneys were incurred or expended (as the
case may be) until the date of the reimbursement in full thereof
by the Chargor.
(B) All moneys from time to time owing by the Chargor under or
pursuant to clause 9(A) hereof shall be charged on the Shares,
and the charge hereby conferred shall rank in priority to the
charge created hereunder to secure the Indebtedness and shall be
in addition and without prejudice to any and every other right,
power, remedy, lien or security which the Lender may have or but
for the said charge would have had for the moneys hereby secured,
or any part thereof.
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10. (A) The Chargor makes the following representations and warranties to
the Lender:-
(i) it is a company incorporated with limited liability and
in good standing under the laws of Delaware, United
States of America and has the corporate power and
authority and the legal capacity to create the security
herein contained and to perform and observe its
obligations hereunder;
(ii) the execution, delivery and performance of this Share
Mortgage has been (or when executed will have been)
duly authorised by all necessary action of the Chargor
under all applicable laws and regulations of Delaware,
United States of America and this Share Mortgage
constitutes (or when executed will constitute) a valid
and legally binding obligation of the Chargor in
accordance with its terms;
(iii) except as disclosed on Schedule 10(A)(iii), it is not
in default in the payment of any principal of or
interest on any indebtedness for borrowed money and is
not in breach of or in default in any respect under any
other provision of any indenture, deed of trust,
agreement or other instrument to which it is a party
and under or subject to which any such indebtedness for
borrowed money has been issued and is outstanding and
(to the best of its knowledge and belief) no event,
condition or act which with the giving of notice or
lapse of time, or both, would constitute an event of
default under any such indenture, deed of trust,
agreement or other instrument has occurred or is
continuing which has not been properly waived or
remedied thereunder;
(iv) except as disclosed on Schedule 10(A)(iv), no
litigation, arbitration or administrative proceeding of
a material nature before or of any court, tribunal,
arbitrator or governmental authority is presently
taking place, pending or to its knowledge (having made
all reasonable enquiries) threatened against it, or any
of its properties or assets which could result in an
adverse change in the business, assets or condition of
the Chargor;
(v) neither the execution and delivery of this Share
Mortgage nor the performance or observance by the
Chargor of any of its obligations hereunder will or
would:-
(aa) conflict with, or result in any breach of or
default under, any provision of any law, order,
agreement, instrument, franchise, concession,
license, permit, liability, obligation or duty
applicable to the Chargor or by which it is bound;
or
(bb) cause any limit on any of the borrowing
guaranteeing, charging or other powers of the
Chargor (whether imposed by its Constitution
Documents, Bye-laws, or by agreement, instrument
or otherwise), or upon any of the power of its
board of directors to exercise any of such powers,
or any other limit affecting the Charger, to be
exceeded; or
6
(cc) create or result in or (except as may be provided
herein) oblige the Chargor to create any lien,
charge, security interest or other encumbrance on
the whole or any part of the Chargor's property,
assets or revenues, present or future;
(B) The Chargor further represents and warrants to and undertakes
with the Lender that each of the representations and warranties
contained in clause 10(A) hereof shall continue in full force and
effect and shall be deemed to be repeated on each day on which
the Indebtedness or any party thereof remains outstanding by
reference to the facts and circumstances then subsisting.
11. The Chargor hereby further covenants and undertakes with the
Lender that so long as the Indebtedness or any part thereof
remains outstanding, it will:-
(i) provide to the Lender all financial information
relating to the Chargor;
(ii) procure that the Company shall provide the Lender
promptly with all financial information relating to the
Company as the Lender may from time to time reasonably
require;
(iii) give prompt written notice to the Lender on any
acquisition or disposal (direct or indirect, whether by
a single transaction or by a number of transactions,
whether related or not, and whether at the same time or
over a period of time) by the Company of any company or
assets with value equal to or exceeding 10% of its
consolidated total assets; and
(iv) ensure that the business of the Chargor (whether or not
carried on or conducted through any its subsidiaries or
associated companies) shall be run and managed
properly, efficiently and on an arm's length basis and
that shall remain in a solvent and healthy financial
position.
(B) The Chargor hereby further covenants and undertakes with the
Lender that so long as the Indebtedness or any part thereof
remains outstanding, it will not save with the Lender`s written
consent:-
(i) sell, assign, sub-divide, transfer or otherwise dispose
of the Shares, or any part thereof, or any interest
herein, or enter into any agreement so to do; or
(ii) (save for the charge created herein in favour of the
Lender) create or agree to create or permit to arise
any mortgage, charge, pledge or any other encumbrance
over or in respect of the Shares, or any part thereof,
or any interest therein, or enter into any agreement so
to do; or
(iii) enter into any agreement or incur any obligation which
might materially and adversely affect its financial or
other conditions.
12. The Chargor hereby further covenants and undertakes with the Lender that
for so long as the Indebtedness or any part thereof or any other sum
owing under the Agreement remains outstanding it will notify the Lender
in writing as soon as it becomes aware of
7
the occurrence of any event which might adversely affect its ability to
perform its obligations under this Share Mortgage.
13. The Chargor shall not have any right to claim against the Lender in
respect of any loss arising out of any sale pursuant to this Share
Mortgage, howsoever such loss may have been caused (save and except gross
negligence or willful default of the Lender) and whether or not a better
price could or might have been obtained on the sale of any of the Shares
by either deferring or advancing the date of such sale or otherwise
howsoever.
14. No restrictions imposed by any ordinance or law in force in Hong Kong or
elsewhere on any power of sale or on the consolidation of mortgages or
other securities shall apply to this security.
15. No person dealing with the Lender, or with its brokers or agents, shall
be concerned to enquire whether the security hereby constituted has
become enforceable, or whether the power exercised or purported to be
exercised has become exercisable, or whether any moneys remain due upon
the security of this Share Mortgage, or as to the necessity or expediency
of the stipulations and conditions subject to which any sale of any of
the Shares shall be made, or otherwise as to the propriety or regularity
of any sale of any of the Shares, or to see to the application of any
money paid to the Lender, or its brokers or agents, and in the absence of
fraud on the part of such person such dealing shall be deemed so far as
regards the safety and protection of such person to be within the powers
hereby conferred and to be valid and effectual accordingly, and the
remedy of the Chargor in respect of any irregularity or impropriety
whatsoever in the exercise of such powers shall be in damages only.
16. Upon any sale of any of the Shares, the receipt of the Lender, for the
purchase money of the Shares sold shall effectually discharge the
purchaser or person paying the same therefrom and from being concerned to
see to the application or being answerable for the loss or misapplication
thereof.
17. All moneys received by the Lender arising from any sale of any of the
Shares under the power hereby conferred shall be applied as follows:-
FIRST: in or toward payment or satisfaction of all costs, charges,
expenses and liabilities incurred and payments made by or on
behalf of the Lender in connection with such sale together
with, in every such case, interest thereon at the rate
provided for in clause 9(A) hereof;
SECOND: any amount owing to the Lender by the Chargor under this
Share Mortgage;
THIRD: in or towards the payment to the Lender of the Indebtedness
in accordance with the Agreement, until the whole of the
Indebtedness shall have been certified by the Lender as
having been paid in full and discharged; and
FOURTH: following such payments the remaining balance (if any) shall
be paid to the Chargor or as it may direct.
8
18. (A) The security hereby constituted is to be a continuing security
and accordingly shall remain in operation until all the
Indebtedness and all moneys hereby undertaken to be paid or
intended to be hereby secured have been paid off or satisfied in
full.
(B) The security hereby constituted shall forthwith become
enforceable if the Indebtedness (or any part thereof) shall not
have been paid in full by the Chargor at maturity or when the
same otherwise falls due under the terms of the Agreement, and
the Lender may, at any time thereafter, sell the Shares, or any
of them, at any time and in any way which the Lender may, deem
expedient. It is hereby declared and agreed by the Chargor and
the Lender that if the Lender exercises its right of sale as
aforesaid and part of the Shares are sold, the remaining Shares
unsold shall, for so long as the Indebtedness remains
outstanding, continue to be security for the same.
19. The security hereby constituted shall not be in any way affected,
diminished or discharged by the taking, holding, varying,
non-enforcement, realisation, release or failure to renew or perfect or
enforce by the Lender of any other security for all or any of the
Indebtedness or for all or any of the other sums, payment of which is
hereby undertaken to be made or which are otherwise hereby secured, or by
any time, indulgence, concession, dealing or other things done or omitted
or neglected to be done by the Lender in relation to any such other
security, or the Chargor or any other person, and is in addition to and
not in substitution for any other security which the Lender may at any
time take or hold for the payment of all or any of the Indebtedness, or
of all or any of such moneys, and may be enforced without first having
recourse to such other security, and without taking any steps against the
Borrower or any other person. As used in this clause 19, the word
"security" includes (without limitation) any guarantee, indemnity,
pledge, xxxx, xxxx, note, mortgage, charge, debenture, power of attorney,
or other similar instrument, document or security and any right, power or
remedy thereunder or in respect thereof.
20. Any waiver by the Lender of any breach of any of the undertakings, terms
or conditions contained herein or other relaxation or indulgence granted
at any time by the Lender to the Chargor or any other person, shall,
without any express reservation to that effect by the Lender, be deemed
to be without prejudice to and shall not affect the exercise at any time
thereafter by the Lender of all or any of its rights, powers and remedies
hereunder as though no such waiver had been made or relaxation or
indulgence granted. No failure or delay by the Lender in exercising or
enforcing any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise, enforcement or waiver of any
right, power or remedy preclude their further exercise or enforcement, or
the exercise or enforcement of any other right, power or remedy as though
no waiver had been made and no relaxation or indulgence granted. The
rights, powers and remedies herein provided are cumulative and not
exclusive of any rights, powers or remedies provided by law.
21. If all the Indebtedness and all other moneys payment of which is hereby
undertaken to be made or which are intended to be hereby secured shall
have been duly paid and all the agreements, undertakings, terms and
conditions herein contained to be performed and observed by the Chargor
shall have been duly performed and observed, the Lender shall
9
at any time thereafter, at the request and cost of the Chargor, discharge
and release this Share Mortgage and the security hereby created and
release, re-assign and transfer all the Shares to the Chargor or as the
Chargor shall direct Provided however always that the Lender shall not be
bound to return the securities bearing serial numbers identical with the
Shares charged to the Lender so long as the securities returned are of
the same class. denomination and nominal amount and rank pari passu with
those originally charged to the Lender.
22. (A) Any notice or other communication given or made under or in
connection with the matters contemplated by this Share Mortgage
shall be in writing.
(B) Any such notice or other communication shall be addressed as
provided in schedule and, if so addressed, shall be deemed to
have been duly given or made as follows:-
(i) if sent by personal delivery, upon delivery at the
address of the relevant party;
(ii) if sent by post, two Business Days after the date of
posting;
(iii) if sent by telex or facsimile, when despatched; and
(iv) if sent by cable, one Business Day after despatch.
(C) A party may notify the other party to this Share Mortgage of a
change of name, relevant addressee, address or facsimile number
for the purposes of this clause 22 provided that such
notification shall be effective on:-
(i) the date specified in the notification as the date on
which the change is to take place; or
(ii) if no date is specified or the date specified is less
than five clear Business Days after the date on which
the notice is given, the date falling five clear
Business Days after notice of any such change has been
given.
(D) Any legal process including any writ or originating summons or
otherwise and any other summons or notice to be served on the
Chargor by the Lender or by the Chargor on the Lender in any
legal proceeding or action in any court or tribunal shall be
deemed to be sufficiently and duly served on the Chargor or the
Lender (as the case may be) forty-eight (48) hours after having
been left or sent by ordinary pre-paid post to the Chargor or the
Lender (as the case may be) at its registered office or usual
place of business in Hong Kong and in proving such service it
shall be sufficient to prove that the legal process or summon or
notice was properly addressed and posted or properly left (as the
case may be) irrespective of whether the same is returned to the
Lender or the Chargor (as the case may be) through the post
undelivered to the Chargor or the Lender (as the case may be).
(E) The Chargor hereby irrevocably and unconditionally designates,
appoints and empowers __________________ of ________________ (the
"Agent") as its authorised agent to receive and acknowledge for
an on its behalf service of any writ,
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summons, order, judgment or other notice of legal process in Hong
Kong when and as such legal action or proceeding may be brought
in connection with this Share Mortgage. The Chargor hereby
consents and agrees that any writ, summons, order, judgment or
other notice of legal process shall be sufficiently served on it
if delivered to the Agent for service aforesaid at the aforesaid
address whether or not the Agent gives notice thereof to the
Chargor. The Chargor agrees that it will at all times
continuously maintain a service agent for accepting service of
process in Hong Kong with respect to this Share Mortgage, and in
the event that, for any reason, the Agent (or its successor)
shall no longer serve as agent of the Chargor to receive service
of process as aforesaid, the Chargor shall promptly appoint a
successor so to serve and shall advise the Lender thereof.
Notwithstanding anything herein before contained, the Lender
reserves the right to serve process on the Chargor in any other
manner permitted by law.
23. No provision hereof may be amended, waived, discharged or terminated
orally, but only by an instrument in writing signed by both parties
hereto.
24. Any provision hereof prohibited by or being unlawful or unenforceable
under any applicable law actually applied by any court of competent
jurisdiction shall, to the extent required by such law, be severed from
this Share Mortgage and rendered ineffective so far as is possible
without modifying the remaining provisions of this Share Mortgage. Where,
however, the provisions of any such applicable law may be waived, they
are hereby waived by the parties hereto to the full extent permitted by
such law to the end that this Share Mortgage shall be valid and binding
and enforceable in accordance with its terms.
25. (A) This Share Mortgage shall be binding upon and ensure to the
benefit of the parties hereto and their respective successors and
permitted assigns (as the case may be), but the Chargor shall not
assign or transfer any of their rights and obligations hereunder.
(B) If the Lender shall assign the whole or any part of its rights
under the Agreement in accordance with the terms thereof it may
also assign the whole or the appropriate portion of its rights
hereunder, in which event references herein to the Lender shall
thenceforth be deemed to include a reference to such assignee to
the extent of its interest.
26. (A) This Share Mortgage shall be governed by and construed in all
respects in accordance with the laws of Hong Kong Special
Administrative Region, and the Chargor hereby irremovably submits
to the jurisdiction of the courts of Hong Kong Special
Administrative Region.
(B) The submission of the Chargor to the jurisdiction of the courts
of Hong Kong Special Administrative Region shall not limit the
right of the Lender to take proceedings in the courts of any
other country having, claiming or accepting jurisdiction over the
Chargor, nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
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27. The Chargor shall be responsible for and pay all costs, charges and
expenses (including legal fees) incurred or to be incurred by the Lender
in connection with the negotiation, preparation, execution and
enforcement of this Share Mortgage.
28. This Share Mortgage may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument.
IN WITNESS whereof the parties hereto have been executed this Share Mortgage on
the day and year first above written.
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SCHEDULE
The relevant addressee, address and facsimile number of each party for the
purpose of clause 22 of this Agreement:-
CHARGOR
Name : The Ashton Technology Group, Inc
For the attention of : Xx. Xxxxxxx X. Xxxxxxxx
Address : 11 Penn Center, 0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Facsimile No. : (000) 000 0000
LENDER
Name : XX Xxxxxx Group Limited
For the attention of : Xx. Xxxxxxx Xxx
Address : x/x 0xx Xxxxx, Xxxxxxxxx Xxxxx,
00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Facsimile No. : (000) 0000 0000
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UNDERTAKING
TO: XX Xxxxxx Group Limited (the "LENDER")
A Loan of US$500,000 (the "LOAN") to The Ashton Technology Group, Inc. (the
"Borrower") by the Lender
I, Xxxxxxx Xxxxxxxx of Ashton Technology Group, Inc. , have been provided with a
copy of the following loan/security documents relating to the captioned matter
(collectively, the "Documents") for reference:-
(a) A facility letter dated January 30, 2002, duly accepted by the Borrower;
and
(b) A Share Mortgage dated January 30, 2002, over the 47,000,000 shares in the
capital of Kingsway ATG Asia Limited executed by the Borrower in favour of
the Lender as security of the Loan.
In consideration of the Lender agreeing to grant to the Borrower the captioned
loan facility, I/We hereby unconditionally and irrevocably agree to act as agent
to receive and acknowledge from time to time and at all times for and on behalf
of the Borrower service of any writ, summons, order, judgment or other notice of
legal process in respect of the Documents in Hong Kong, when and as such legal
action or proceeding may be brought.
I/We hereby further agree and undertake with you that during the continuance in
force of the agreement, my/our appointment as agent of the Borrower as aforesaid
shall be irrevocable, save and except with your prior written consent.
In this Undertaking, words denoting the singular shall include the plural, and
vice versa.
SIGNED /s/ Xxxxxxx X. Xxxxxxxx )
By Xxxxxxx X. Xxxxxxxx )
)
in the presence of:- )
)
)
Dated January 30, 2002
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